Mental Health Law I: Legal Precedent in Everyday Clinical Practice

Question 1

informed consent

Answer 1

a person cannot legally agree (consent) to a given course of action unless he or she has first been properly informed about the nature, risks, and benefits of that course of action.

Question 2

informed consent evolved through

Answer 2

Fourteenth Amendment of the U.S. Constitution, which deals with due process and the right to a fair trial.

Question 3

three key legal elements in informed consent

Answer 3

voluntariness,
disclosure,
capacity

Question 4

Voluntariness

Answer 4

Consent must be made of the person’s own free will, and not coerced

Question 5

Disclosure

Answer 5

all information relevant to making the decision must be presented

Question 6

IF “disclosure” has taken place, a person is considered

Answer 6

adequately “informed”

Question 7

Capacity

Answer 7

refers to the person’s mental ability to understand the legal or other consequences of the actions in question

Question 8

informed consent first appeared

Answer 8

Salgo v. Leland Stanford Jr. Board of Trustees (1957)

Question 9

Major case involving informed consent

Answer 9

Miranda v. Arizona (1966)

“read them their rights”

Question 10

Kaimowitz v. State of Michigan (1972)

Answer 10

Addressed the issue of coercion as an annulment to informed consent in both medical and legal settings

Question 11

Canterbury v. Spence (1972)

Answer 11

refined the definition of “informed”

Changing it from if a “reasonable professional” (i.e., physician) would have seen fit to disclose more information to “what the typical patient would want to know”

(aka the “prudent patient” or the “materiality of risk” criterion)

Question 12

Zinermon v. Burch (1990)

Answer 12

+clarified the need for informed consent when dealing with admissions into mental health facilities

+set forth specific guidelines for mental health professionals to follow in order to ensure that voluntary consents to treatment represent the competent wishes of the patient

Question 13

Burch argument in Zinermon v. Burch (1990)

Answer 13

Burch asserted that the hospital professionals should have been more aware of his condition during the time he was signing admission forms.

Burch felt he should not have had to sign voluntary admission forms, but he should have been admitted by going through the involuntary admission process.

Question 14

Arizona v. Fulminante (1991)

Answer 14

There is no constitutional due process right to a perfect trial, merely to a fair one,

Question 15

Confidentiality

Answer 15

What a client considers private must stay private;

Question 16

Privileged communication

Answer 16

Legal term indicating that even a court cannot compel disclosure

Question 17

John H. Wigmore: how can the appropriateness of testimonial privilege be determined?

Answer 17

1. The communication must originate after an expectation of confidentiality is established
2. Confidentiality must be essential to the relationship between the parties
3. Any injury that would occur to the relationship by breaching confidentiality must be greater than any benefit gained by society by the breach.

Question 18

Court interpretation of the Wigmore criteria with regard to 3rd parties.

Answer 18

if information is given to a third party, there is no expectation of confidence and hence no privilege.

Question 19

employee assistance programs (EAPs)

Answer 19

programs that provide mental health benefits to company employees.

Question 20

ways that employers can legally obtain information about an employee in an EAP

Answer 20

(1) if the supervisor, even casually, suggested that the client contact the EAP, the supervisor is entitled to know what visits were made (though not the contents of the visits)
(2) if the employee sues for wrongful termination, discrimination, breach of contract, or virtually anything else
(3) if the client is suicidal or threatens violence, or reports a child being abused. Also, if the client files a workplace injury claim, EAP records are often turned over to claims adjusters (not directly to the employer)

Question 21

In re Lifschutz (1970)

Answer 21

the first case to assert clearly and formally that a constitutional right to privacy includes a psychotherapist–patient privilege and that the patient, not the therapist, “owned” the privilege

Question 22

Caesar v. Mountanos (1976)

Answer 22

9th Circuit U.S. Court of Appeals:
Asserted that the constitutional right to privacy protects the confidentiality of psychotherapist–patient communications.

However, it rejected the argument that the privilege was absolute.

The Court held that the privilege may be limited when necessary to advance a compelling state interest.

Question 23

Pennsylvania v. Ritchie (1987)

Answer 23

Ritchie was accused of sexually assaulting his daughter, and the judge was allowed to subpoena a state agency’s confidential mental health file, over the defense’s objections, to decide which material would be revealed. Upheld by Supreme Court

Question 24

The case of Jaffee v. Redmond, 1996

Answer 24

Jaffee wanted notes/records from an lcsw, who had counseled Redmond.

The trial judge rejected the social worker’s assertion of privilege, and instructed the jury “to presume the contents of the notes would be unfavorable” to the defense.

An Appeals Court overturned the verdict on the basis of client–therapist privilege. They argued for a balance of interests test under which they supported the assertion of privilege in this case. Relatives appealed, arguing that the Appeals Court created too broad of a privilege.

The 7th Circuit Court affirmed the Appeals Court logic, including the balance of interests test under Rule 501 of the Federal Rules of Evidence.

The Supreme Court ruled on June 14, 1996, that federal courts must allow psychotherapists and other mental health professionals to refuse to disclose patient records in judicial proceedings.

Question 25

Judge Rehnquist’s comments in Jaffee, on privilege

Answer 25

that a privilege subject to exceptions is not much of a privilege.

Question 26

Define Dangerousness

Answer 26

Varies. The concept of dangerousness is often ambiguous and include that to others, to self, or to property.

Questions to consider: Does it include emotional harm, cognitive harm, or economic harm, as well as physical harm? How severe or frequent must harm be to justify intervention? how close in time is the dangerous act is expected (imminence)?

Question 27

Meier v. Ross General Hospital (1968)

Answer 27

firmly established a basic duty of therapists to exercise adequate care and skill in “diagnosing” suicidality based on a duty to protect the client from his or her own actions.

Question 28

Dinnerstein v. State (1973)

Answer 28

established the principle that the clinician can be held liable if the treatment plan overlooks/neglects a patient’s suicidal tendencies.

Question 29

three notable arguments of Tarasoff v. the Regents of the University of California (1976)

Answer 29

(1) The defendants had failed to detain a dangerous patient;
(2) the defendants were negligent in not making sure that the intended victim, Tatiana, was made aware of the potential danger she faced;
(3) the defendants had breached their duty to safeguard the patient and the public.

Question 30

Regarding dangerousness to others, courts have been divided on the issue of the requirement of specific threats and specific victims. Discuss 4 such cases.

Answer 30

McIntosh v. Milano, 1979: State courts held that therapists could be sued for failing to protect even when there were no threats communicated

Leedy v. Hartnett,1981: the duty to warn was in effect if medical staff either “knew” or “should have known” about a client’s dangerousness

Thompson v. County of Alameda, 1980: A California court further narrowed the duty to protect others by saying that a duty arises only when there are “specific threats to identifiable victims,”.

Brady v. Hopper, 1983: John Hinkley’s therapist was deemed immune from any duty to warn because of a lack of specific threat.

Question 31

Jablonski v. United States (1983)

Answer 31

The court ruled against the therapists, that they were negligent for the death of a girl (who they had warned to move out and away from her roommate because she may not be safe after a failed involuntary civil commitment), because

(1) they did not forecast the homicide based on the “psychological profile” of the patient,
(2) did not request some prior records,
(3) the warning was vague and inadequate.

Question 32

Almonte v. New York Medical College (1994):

Answer 32

Civil case: Family of victim, a young boy, was sexually assaulted by Dr DeMasi undergoing therapy by Dr Ingram who was found at fault by a jury because Dr. Ingram should have gone to the hospital and/or medical training directors and worked to have Dr. DeMasi removed from medical practice.

Question 33

Garner v. Stone (1973)

Answer 33

Doctor felt client was a danger at his work and informed the supervisors. Client was reassigned to a psychologically damaging position and sued for breach of confidentiality that led to the new position. Won damages.

Question 34

A professional has an ethical obligation to keep client information private unless…

Answer 34

legally compelled to disclose it